Court Information

Court: Ontario Court of Justice, Old City Hall – Toronto

Citation: 2014 ONCJ 401

Between: Her Majesty the Queen

And: Richard Harris

Counsel:

• D. Silver, for the Crown
• M. Mirosolin, for the Defendant

Heard: May 1, 2 and 16, 2013 and April 3 and May 6, 2014

Judge: Melvyn Green, J.

Reasons for Judgement

A. INTRODUCTION

[1] Richard Harris, the defendant, lived alone in Toronto. The complainant, Erin Herrington, lived with her husband in London, Ontario. The two met in April 2010. An intimate affair soon followed. It ended badly when the police were summoned to the defendant's apartment on Sunday, March 25, 2012. As a result, he is charged with twice assaulting the complainant "on or about" that day, one of which assaults is alleged to have caused bodily harm. He was also charged with assaulting the complainant in February 2012. With the prosecutor's consent, a directed verdict of not guilty was entered with respect to the February 2012 charge at the close of the Crown's case. Accordingly, the defendant now faces only two charges, both arising from the events on or about March 25, 2012.

[2] The complainant and defendant both testified. Most of their historical evidence and much of that pertaining to the events in late-March 2012 are consistent. An attending police officer and a paramedic also testified, chiefly with respect to the parties' demeanour and the complainant's injuries. The defendant denies most of the complainant's allegations of assault and claims he acted in defence of himself or his property regarding the others.

[3] Where the complainant's and the defendant's accounts differ, the case presents as yet another variant of the she-say/he-say scenario that characterizes many "domestic" prosecutions. The ultimate burden of persuasion rests on the Crown and, as always, on the venerable criminal standard. If I am left with any reasonable doubt as to the occurrence of the conduct said to amount to the charged offences or as to whether the defendant acted in defence of himself or his apartment, an acquittal must follow. If, on the other hand, I am satisfied beyond reasonable doubt that he assaulted the complainant, caused, in one instance, bodily harm, and that he was not at the critical times acting in reasonable defence of his own physical integrity or that of his property, convictions must follow.

B. EVIDENCE

(a) Introduction

[4] I first introduce the players and recount the genesis and early and middle history of their relationship. Beginning with the complainant, I then summarize her testimony, followed by a précis of the defendant's, bearing on contested elements of the narrative, particularly the occurrences of March 24 and 25, 2012. In light of the reciprocal affection they still palpably share, I refer, as do the protagonists in their testimony, to the defendant as "Richard" and the complainant as "Erin" throughout my review of their evidence.

[5] A brief synopsis of the evidence of the single police officer and the paramedic who attended the defendant's apartment then follows.

(b) Richard and Erin

[6] Richard and Erin are both university educated. Richard is 38, a published writer and translator. He has no criminal record. He is about six feet tall and weighs close to 200 pounds. He is, as put by Erin at one point, "fit". Richard lived in an apartment in Toronto during the years at issue.

[7] Erin, meantime, lived for the most part in London with her husband, David, a doctor. He was in the process of qualifying as a surgeon at the front end of Erin's relationship with Richard. Erin stands about five foot four inches and weighs no more than 130 pounds. She is an epileptic and occasionally suffers seizures, with related falls and injuries. On one occasion she had a serious seizure while in Richard's company. Erin is prescribed a number of drugs to treat or stabilize her condition, including some that have "possible" side effects such as unsteadiness, loss of balance, dizziness and drowsiness. Erin initially acknowledged that she was aware of most of these side effects in March 2012, although she had not experienced them even when combined with alcohol. She considerably narrowed the scope of her awareness in re-examination. Not taking her medication, she understood, led to an increased risk of seizure.

[8] Although aware that Richard's release conditions prohibited contact with her, Erin several times texted Richard while he was on bail in the months preceding the trial. Richard did not respond to Erin's texts.

(c) The First Two Years

[9] Richard and Erin first met on a train in April 2010. An exchange of emails ensued, as did a long-distance friendship that, in turn, matured into an intimate and romantic relationship by the summer of the same year. Numerous trysts in Toronto and London followed. Erin and her husband David were estranged by the time of Richard's trial. She did not tell David about her affair with Richard until after the events of March 25, 2012, having lied to him about the relationship through its entirety. Richard knew Erin was married, but understood that the marriage was deeply strained and that Erin wanted to leave her husband and move in with him in Toronto – a prospect Richard warmly entertained, at least in the first year of their relationship. This conceit, if not delusion, continued into the summer of 2011 when Erin announced that she could not leave her husband. She and Richard agreed to move on, but resumed physical contact before she embarked for Newfoundland, her home province, for a summer vacation. When she returned, Erin and her husband (then completing a rotation at a Toronto hospital) rented an apartment close to Richard's from September until late-November. She and Richard spent much of their days together in this period.

[10] Following Erin's return to London in late-November, she and Richard did not see each other again until, and then only briefly, February 2012, with reduced email traffic in the interim. While Richard would likely have welcomed a different resolution, Erin was, in her own words, intent on trying to save her marriage. Richard did not expect any further contact or communication with Erin after their February meeting. About a month later, on Wednesday, March 21st, Erin texted Richard and proposed visiting him in Toronto for one evening. He met Erin when she arrived at Union Station the next day, March 22nd.

[11] Sometime before that date, Erin had grown concerned about calls she learned Richard had been making to her family and in-laws and, on one occasion, his attempt to reach her husband. These reports had caused Erin to feel nervous and scared. She hoped that her visit with Richard would allow them to conclude their relationship on a positive note.

[12] Erin and Richard had quarreled in the past, sometimes strenuously. These arguments had never, in Erin's words, "involved physical touching" and "always ended up OK". Richard's recall was to the same effect.

(d) The Events of March 22-25, 2012

(i) Introduction

[13] There are only two witnesses – Erin and Richard – to what transpired over the course of the four days (Thursday, March 22nd through Sunday, March 25th, 2012) they spent together at Richard's Toronto apartment. Yet there are four testimonial accounts of these events. Erin tenders three of these. First, there is the relatively benign, or at least non-incriminatory, version she advances when first subject to direct examination. The Crown then successfully applied to cross-examine Erin on inconsistencies between her testimony and the contents of a videotaped statement she gave the police on the evening of Richard's arrest, March 25, 2012. Erin effectively adopts her prior statement, with some elaboration, rendering Richard considerably more aggressive and assaultive than portrayed in her initial rendition. Finally, in cross-examination, Erin returns to a somewhat more defence-favourable stance, assuming primary responsibility for initiating the physical altercations while endeavouring to absolve Richard of moral if not legal liability. While arguably consistent with each retelling, the bruising evident in police photographs of various parts of Erin's body is particularly confirmatory of the darkest of Erin's three versions of the salient events.

[14] The fourth account is Richard's testimony. Although not free of improbabilities and at least one material inconsistency, Richard's narrative maintains an exculpatory coherence through direct and cross-examination.

(ii) Erin's Account(s)

1. Version 1: The Initial Account

[15] Erin's visit with Richard began well but descended into acrimonious arguments about their relationship by their second or third day together. Richard grew angry and told Erin to leave his apartment. When Erin persistently refused, Richard ultimately called the police. The police attended, saw bruising on Erin's arms and arrested Richard.

[16] The bruising on Erin's arms was a result of her and Richard tightly holding the other's upper arms as they pushed each other back and forth during the course of their arguments. There was no other cause of the bruising: "just the pushing". Richard had not aggressively touched her in any other way. Erin testified that she did not "sustain any injuries" and that she never sought medical attention following the altercation.

[17] Erin attended the police station upon Richard's arrest. The police took photographs of Erin's physical trauma while she wore a sleeveless top and jeans. (There is no evidence regarding her attire when the police first attended Richard's apartment.) Erin also provided a videotaped statement. She told the police the truth, had reviewed the statement before she began her testimony, recalled what she told the police, and declined Crown counsel's offer to re-review her statement during the course of direct examination.

[18] The police photographs demonstrated, as Erin acknowledged, a cut to the back of her head and redness and bruising on much of her right arm, wrist and knuckles, on her left arm and wrist and near her left shoulder, on both knees and on the upper left side and lower right side of her back. (The bruising on the inner right bicep and at two places on her back appears black and blue in the photos. However, no evidence was led as any relationship between the colouration of the bruises and their recency or severity.) Erin was not sure how she sustained the cut to her head, speculating that she must have fallen backwards during the reciprocal pushing. Erin also attributed the bruising to her head and torso to the pushing, with the lower back injury resulting from her likely being pushed against something during an altercation.

2. Version 2: The Videotaped Statement, as Adopted

[19] As conceded by the defence, some parts of Erin's trial testimony were materially inconsistent with the sworn videotaped statement she provided the police on the evening of March 25, 2012. Pursuant to s. 9(2) of the Canada Evidence Act, I granted leave to Crown counsel to cross-examine Erin respecting her prior statement. The procedure that generally followed involved Crown counsel playing portions of a DVD copy of Erin's statement, asking her if she recalled uttering the words at issue and, if so, whether they were true, and then sometimes exploring the matter through further questioning.

[20] By way of overview, Erin explained that her physical altercation with Richard extended over the final two days of her visit, beginning on the Saturday afternoon. Their physical exchanges on Sunday were not as intense. Erin initially attributed the cause of their fighting to Richard having accessed her email account and then suspecting she had been having an affair with her husband's best friend, Crispin. She later grew more indefinite:

I can't say exactly what incensed the argument. I know that we were having a lovely time. We always have, you know, we have wonderful times together. I guess something just set him off. I can't tell you exactly what it was.

They had been drinking white wine together on both Saturday and Sunday and "feeling the effects", but "nothing over the top" and "neither of us was inebriated". (In cross-examination, Erin conceded consuming at least a bottle of wine over the course of Saturday afternoon, and at least another bottle before the police arrived on Sunday.)

[21] Erin acknowledged that she had told the police that Richard had "split [her] head open" and that this was a true account. This occurred, Erin explained, when Richard had picked her up and "flipped" or "flicked" her to get her out of his apartment when she refused to leave. Her head had hit the edge of the breakfast bar or counter in the kitchen as she fell back. The ensuing cut to the back of her head, she testified, "was my fault because I was, you know, continuing to stay". Richard summoned an ambulance as a result of this injury and paramedics attended at the apartment. Although aggressively pursued by Crown counsel, the meaning of "flipping" or "flicking" defied settled explanation, as illustrated by the following exchange:

Q. You described that he, just now on the video, that he had picked you up off the ground and flipped you.

A. Mm-hmm. That's what I mean, pushing and shoving.

Q. So, when you described pushing and shoving, you're actually talking about lifting up off the ground and throwing?

A. Well, not always, just, just pushing me, I guess aggressively. …

Q. So, you've just said here [in the video] that he picked you up off the ground and flipped you. Is that what happened or is it a push?

A. No, that would be what had happened. I'm kind of saying that it's a pushing. …

Q. … you have both arms in front of you and you're sort of throwing them in a forward motion away from your body, both hands. Did he, in fact, pick you off the ground like you've just said in the video?

A. Not as in like took me and flipped me, like picked me up and flew me in an upward motion, but just a pick-up and throw me back where I lost my footing and, and just fell back against something, the breakfast bar.

This injury occurred on the Saturday, or what Erin referred to as the "second day" (second full day, as I understand the evidence) she and Richard spent together. This was, in Erin's words, "kind of a rough day" during which Richard had pushed or thrown her about fifteen times – "him trying to get me out, me trying to refuse". Erin was "definitely pushing back". Again adopting her video statement, Erin agreed that the bruising on her knuckles was a result of her hitting Richard when acting out of frustration and self-defense.

[22] They spent Saturday night together. In Erin's words, "we thought it was going to be better". However, their arguments resumed. Richard pushed her again on the Sunday (the day the police were summoned), but only three times and only towards the door as he tried to force her out of his apartment. The force had caused her to fall to the floor (once hard) a couple of feet from where she was first pushed. Erin did not "know exactly where each bruise came from", but those on her back "would have been from landing against something or back on the floor". During their altercation on Sunday Richard had said, "Don't make me do today what I did yesterday".

[23] Richard "desperately" wanted Erin to leave his apartment. She resisted because she "just didn't want him to start calling people" – Erin's family members – "when I left". In Erin's summary: "We were best of friends 90% of the time, just the end didn't work out so well".

3. Version 3: The Account in Cross-Examination

[24] Erin agreed that she had agreed to spend only one night with Richard. They had spent an intimate Thursday night together, but she did not leave on the Friday because of the "relationship" – or, as Erin elaborated, because "we enjoyed spending time together". She and Richard were intimate again on Friday evening. Richard's repeated demands that Erin leave began on Saturday. He was very angry and repeatedly demanded that Erin leave his apartment. She repeatedly refused to do so. Richard also threatened to call the police if she did not leave. Erin agreed that she had knocked his cellphone out of his hand at one point. She acknowledged that she was a visitor in his apartment. He did not physically threaten her, but she was concerned that he would contact her in-laws or her husband if she left before "placating" the situation, leading to their and her embarrassment. Erin conceded she wanted to stay with Richard, at least through the weekend: "I always wanted to stay". Although she agreed that Richard may have gone out to buy food, Erin could not recall for certain whether he had left her alone in the apartment at any point over the weekend.

[25] When the paramedics arrived on Saturday Erin told them her injury resulted from tripping and hitting her head on a coffee table. She testified that she "chose not to tell" them the truth. Erin insisted, however, that, "Richard never hit" her; he "just pushed" her, and the 15 pushes she had earlier noted all occurred on the Saturday. "We were", she said, "actually fighting". Although initially somewhat hesitantly, Erin affirmed, several times, that she had pushed back against Richard's chest with both her hands. She also allowed, again tentatively at first, that she "may very well have been the first to push" and that the injury to her head likely resulted from an exchange of pushes resulting in her falling down and hitting her head. "He would", she repeatedly testified, "never intend to hurt me". They shared intimacies again on Saturday evening after the paramedics left the apartment.

[26] Erin's account of her altercation with Richard evolved through the course of her cross-examination. Erin agreed that Richard, at one point in his efforts to have her leave the apartment on the Saturday, had gone to the bedroom to collect her bags. She angrily grabbed Richard and a scuffle followed during which she punched Richard in the stomach. He did not retaliate. The situation was emotionally charged. Their pushing back and forth led to her fall backwards, either against the coffee table or the breakfast bar, some ten to twelve feet distant. Erin could only affirm the dynamic of this fall, not what object her head had struck. Although she initially allowed that she had punched Richard on only a single occasion Erin ultimately testified that she was "sure" she had punched Richard in the stomach on four occasions. She was also certain she had fallen down several times, all as consequence of the mutual pushing. These falls, said Erin, caused some of her bruising and, in one case, the crack to her head. She attributed the redness on her wrist areas and biceps (including the black and blue colouration) to the repetitive grabbing associated with their pushing each other back and forth. She related the bruising on the upper part of her back to hitting the breakfast bar counter top during the same pushing and shoving. (In re-examination, Erin could not explain "how [she] sustained" the bruising to her lower back.)

[27] Revisiting her "picked up and flicked" locution, Erin explained that Richard had pushed her back with his hands on her shoulders and biceps – a "lift and a push towards the door" – while she endeavoured to resist him. (In re-examination, Erin directly equated "picked up and flicked" with "pushed" and advised that she, if futilely, had tried to do the same to Richard.) The following exchange illustrates Erin's contextualization of the altercation:

Q. He was pushing against you, isn't that what he did, he pushed you?

A. Of course.

Q. He pushed you …

A. Yeah.

Q. … because you were pushing against him, correct?

A. Yeah, it was his house.

Q. And you weren't leaving.

A. No, I agree.

[28] The Saturday evening events were punctuated by inquiring text messages from Erin's husband David. She told David she was staying with a friend and her friend's husband and taking care of their child – all fictional characters that Erin had invented to mask her affair with Richard.

[29] Erin had never tried to call the police. Richard warned Erin on the Sunday that he would call the police if she did not leave his apartment, yet she still refused. When the police did attend in response to Richard's call, Erin "told them to go away". Nor did Erin advance any complaint to the paramedics when they attended to treat her head injury on the Saturday evening. Erin repeatedly testified that, "It was all my fault". She was asked to expand on this theme in re-examination:

Q. How was it your fault that he bruised you?

A. Because I made him very angry.

Q. And how did you make him very angry?

A. Things didn't work out the way that they were supposed to for both of us and there was --- that's not the entire reason, just it was a very emotion-filled relationship, so it's hard. It's not Richard's fault at all. Don't blame him.

Q. Well, … I'm just trying to clarify how it's your fault that he bruised you?

A. We, we fought and we scuffled and I just was the one that landed on things, that's all. I never would have called anybody.

Q. You also went on a little later to say "it's always my fault". What's always your fault?

A. Our relationship. I was the incensor.

[30] Erin agreed that the combination of her anger, alcohol consumption, stress and the emotional weight of the incidents may have negatively impacted her recollection of the events, even as she first spoke with the police: "yes, she testified, "I do get flustered and things get all muddled". Revisited in re-examination, Erin indicated varying certitude about the events at issue:

Q. Do you have any confusion about the events that took place that weekend?

A. Obviously I know that --- I guess yes.

Q. You have confusion about the events?

A. I guess so.

Q. … So, let me just ask you, is there some confusion in your mind about he events that occurred on those two days?

A. I'm confident in what the result was. The exact time frame and you know, how everything occurred, I'm not. I'm not confused about --- well, I am confused about that and just --- what was the result of those two evenings.

By "the result" of which she was confident, Erin meant, "what's shown in the photographs".

(iii) Richard's Account

[31] Richard began his testimony on May 16, 2013. As a result of unanticipated conflicts in both counsels' schedules, a series of adjournments delayed the completion of his cross-examination until April 3, 2014, nearly 11 months later. By way of overview, Richard concedes applying physical force to Erin during their March weekend together. He says, however, that this occurred only on the Saturday, only on two occasions, only after Erin first assaulted him, and only to defend himself and as part of his efforts to restrain and expel her from his apartment when she repeatedly refused to leave – culminating, finally, in his calling the police to have her removed, and in him then being arrested by the very police he had summoned. Other than speculation, Richard cannot explain how Erin suffered much of the physical trauma that appears in the police photographs.

[32] In Richard's account, the resumption of his relationship with Erin ended in November or December 2011 when she moved back to London and because she had admitted lying to him on two occasions. He did not, he said, want to maintain a casual relationship with Erin nor could he continue in one built on lies. Other than infrequent emails and texts, they had no face-to-face contact until she turned up at a coffee shop at which he worked in February 2012. Erin was still not prepared to leave her husband. Richard called the police to report her harassment. He did not anticipate hearing from her again. Accordingly, he was surprised when she began texting on March 21st wanting to visit him. He finally relented and agreed to meet Erin in Toronto the next day, March 22nd, when she promised that it was for "one night only" and that she would catch the 12:15pm train back to London on the 23rd. That morning, Friday the 23rd, Erin asked Richard if she could take a later train and, later, whether she could spend another night with him. Richard agreed. He was still, at some level, in love with Erin.

[33] Erin planned to take a mid-afternoon train home on Saturday. Richard ran some errands. He found Erin drinking white wine in front of the TV when he returned between 1 and 2pm. He agreed to Erin's request to delay her departure until the 7pm train and, then, her request to stay until Sunday. It was the first time they had ever spent a weekend together and Richard wondered why, unlike on past occasions, she did not feel obliged to return to London to spend the weekend with David, her husband. They were sitting together on the sofa as she fielded a series of terse text messages from her David. The first few, which he read, were of the "Where the hell R U?" variety. The last few Richard saw before giving Erin some space to deal with them read: "I want a separation"; "Go back to St. John's"; "Move in with your mother". Erin appeared increasingly anxious and upset.

[34] Richard returned to the sofa in five minutes. It was by then about 7:45 to 8pm. The text messages were the first he had heard of Erin's husband's desire to terminate their marriage. Erin confirmed this when Richard asked her about the messages. He had believed for some time that Erin had been having an affair with Crispin. He now reasoned that David had learned of her affair with his best friend and that this knowledge had provoked him to demand a separation. (To the best of Richard's knowledge, David knew nothing of his existence, let alone that he too was having an affair with Erin.) Richard asked Erin, "Is it because of Crispin?". She became visibly upset and very angry. Richard tested her denials by asking Erin to show him the entire string of messages she had exchanged with Crispin. She passed Richard the phone, but most of the thread had been erased. Confronted, Erin said she had gone to a concert with Crispin on March 17th and then erased the messages because she knew he, Richard, would go through them. Richard's suspicions about Erin and Crispin were, for him, re-confirmed as, more importantly, was the realization that she had lied to him again. The texts from Erin's husband only reinforced his conviction: David's demands for a separation were founded, he believed, on his awareness of her affair with Crispin. These fresh lies were the "final straw". "It was", he said, "over". He asked Erin to leave the apartment. She refused, as she did a number of repeated requests. It was now around 8:30 or 9pm.

[35] A "civil" conversation followed, during which Erin insisted that her relationship with Crispin was "innocent". By its conclusion, around 10 or 11pm, Richard again asked Erin – "countless" times – to "please leave". Erin each time refused. Richard walked to the door, put his hand on the doorknob and said, "I need you to leave" and, further, "there's nothing to work out". Erin, by then extremely upset, joined Richard at the door. Recriminations followed: "How can you do this to me? How can you be so cruel? How can you be so insensitive?". Richard told Erin that if she refused to leave he would call her husband and advise him where to pick her up. He did not call the police to remove Erin as he viewed that option as a last resort. He did not run out the door himself because he feared that Erin, given her state of mind at that point, would trash his apartment, as he testified she had done in a similar state of "rage" in November. He reasoned that a call to David would ensure Erin's departure.

[36] Erin smashed the phone from his hand as he lifted it. She was livid, enraged. "You have to get out", Richard said. Erin responded by punching Richard in his stomach. Erin had never hit Richard before and she used as much force as she was able. "Just get it out", said Richard. Three further punches to his chest and stomach area quickly followed, with Richard asking, "You done?" after the last. He did not respond physically to the assault. Instead, he began to walk to the bedroom. "I'm going to get your bags", he said. He now saw Erin an intruder or trespasser on his property and he wanted her out.

[37] Erin lunged at Richard as he passed through the kitchen, tugging and pulling him from behind. He turned in time to block Erin's right arm mid-swing, and then a second punch. He contained Erin by grabbing and forcefully holding both her upper arms. To prevent Erin from continuing to flail her arms, he then restrained both of her wrists as she writhed and pulled back and forth with all her strength in an effort to break his grasp. Fearing Erin would resume punching him, Richard maintained a strong grip until she said, "You're hurting me". He then abruptly released Erin. The force of her resistance propelled her straight back, her head hitting the floor when she was unable to break her fall on the nearby counter. "I think I cut my head", she said. Richard placed a towel under Erin's head to staunch a small trail of blood and called 911. It was close to midnight. Two EMS personnel attended within about ten minutes. Richard did not tell them that Erin was an unwanted guest or ask to have her removed. The paramedics quickly treated Erin and then left. In view of her condition, Richard agreed to let Erin spend another night in his apartment. Once again they shared his bed, Erin assuring Richard she would catch the 12:15pm train later that day, Sunday.

[38] They rose too late for Erin to catch the 12:15. Richard went out to buy food for lunch and to complete some errands. Erin was again already drinking wine when he returned about 1:30pm. The plan was now for Erin to catch a late-afternoon train. Their conversation was banal: TV, lunch. About 4pm, Erin said was not going and asked Richard if she could stay one more night. Richard began to fear she would never go. He beseeched her to leave and she pleaded to stay. Richard distracted himself with domestic tasks while Erin remained on the sofa. Finally, about 6pm, he realized that he would have to call the police if she refused to leave. He told Erin of his resolve. "Do what you got to do", she responded to his more than a dozen warnings. Richard then called the police. Erin broke down inconsolably in the 20 to 30 minutes before the police attended: "Please, just one more night". Erin's distress overwhelmed Richard. He relented and agreed that she could stay one more night. The police knocked on his door soon after. Richard accepted the accuracy of PC Birtles account (summarized below) as to what occurred after the police arrived at his apartment. He was shocked that he was arrested.

[39] According to Richard, there had only been two physical altercations, both on Saturday: the punching at the door and, some five to ten minutes later, the scuffle near the kitchen counter that culminated in Erin's fall to the floor. This was the only time she fell down, said Richard, in the four days she spent in his apartment in March 2012. It was also the only time he had applied force to her. There were no physical disputes on the Sunday. He denied ever picking up or lifting Erin. Her account, he said, was not mere exaggeration but "a blatant lie". He did not know what she meant by "flick", other than to suggest that Erin might have been referring to their rocking back and forth as he tightly restrained her wrists and they pulled against each other as she tried to break free.

[40] Erin never pointed to or complained of any bruising. He could not recall Erin's clothing, but it was a cool weekend and he wore a long-sleeved shirt throughout it. Erin always wore a top to bed and he had not seen her unclothed after she cracked her head on Saturday evening. In short, he had not observed any injuries until he viewed the police photos of Erin. Richard could not recall if Erin's arms were exposed at the time of his arrest. When first cross-examined, he said that Erin had gone to the kitchen to prepare a Kraft dinner and then to the bedroom just before the police arrived where she may have changed her clothes. Some eleven months later, when his cross-examination resumed, Richard testified that he and Erin remained together in the living room area for the 20 to 30 minutes, perhaps less, between his call to the police and their arrival. Confronted with this inconsistency, Richard allowed that he misspoke. Adopting his earlier testimony, Erin, he now said, had gone to the kitchen to prepare food after they reconciled and he agreed she could stay another night. She then "may have gone to the bedroom to change". He did not "know if she had changed or not because [he] didn't take notice of it". He faulted the passage of time for his confusion and apologized.

[41] Richard attributed the bruising on Erin's arms to his strenuous efforts to restrain her and the injury to her head to her fall in the kitchen area. Otherwise, he could not account for the trauma displayed in the photographs – in particular, the bruising on her legs and back.

[42] Richard had first suspected that Erin was having an affair with Crispin in late-November 2011. Her relationship with Crispin became a sore point and source of argument. Hurt, he had called Erin's in-laws in a "moment of moral weakness", but hung up before speaking to anyone. Erin, he said, continued to pursue him – persistently calling him and attending unannounced at his place of employment and at least once, after evading security, at his apartment door – after he had terminated the relationship in November or December of 2011. This led to a call to an aborted call to Erin's husband in February of 2012. He also tried to telephone Crispin at his workplace on one occasion in February, but the call was not put though and he did not leave a message. Richard repeatedly denied seeking revenge or trying to expose Erin for any vindictive purpose; the calls, he insisted, were intended solely to stop her from pursuing him. Erin make it "very clear" when they met on March 22nd that she did not want him to expose their affair to her family and friends. However, he denied that Erin told him that she was "fearful" he would call her husband, Crispin or members of her family.

(iv) The Attending Uniforms

1. The Paramedics

[43] Alex McDonald, a paramedic, was dispatched to the defendant's apartment just before midnight on Saturday, March 24, 2012. He and his partner arrived at 12:05 on the Sunday morning. Erin Herrington had a small laceration to the back of her head, which he bandaged. McDonald advised Erin, as he did "everyone", to "go to the hospital". She declined to do so. In McDonald's view, Erin was "'of sound mind" to make this decision. He could not recall observing any bruising on Erin, nor did he note or observe any blood in the apartment (other than the moderate amount on Erin's head) or any indicia of intoxication. He did not contact the police. He would have had he suspected Erin was "in danger". He made no notes and had no recall of what Erin was wearing or of any injuries other than the laceration to her head.

2. The Police

[44] At 7:27pm on Sunday, March 25, 2012, police officers were dispatched to the defendant's apartment in response to a request from a Richard Harris to have his ex-girlfriend removed. The defendant opened the door for PC Stephen Birtles and his partner when they attended at 7:45. Richard advised the officers that he and Erin had had an argument but that everything was okay now. Birtles noticed bruising on Erin's arms and shoulders and asked Richard to join him in the hallway while his partner had a conversation with Erin. Birtles returned to the apartment in about five minutes, received certain information from his partner, and then went back to the hallway where he arrested Richard for the offence of assault. Erin appeared nervous, upset and quiet. Richard was calm, polite and compliant with the officers. Unlike many scenes of alleged domestic assaults, the apartment was "very neat" and there were "no signs … of a struggle". Birtles did not observe any bruising or injuries on Richard during the course of his strip-search at the station.

C. ANALYSIS

(a) Introduction

[45] The defendant is charged with twice assaulting Erin Herrington, the complainant. The offence of assault involves the knowing application of physical force without the consent of the person against whom the force is applied. Where, as here, it is also alleged that the assault occasioned bodily harm, the prosecution is not required to prove that the defendant intended to cause such harm but only that it resulted from the assault. Our law recognizes the use of force in the protection of oneself or one's property as a positive defence to a charge of assault, although its application in any given situation depends on a number of factors.

[46] As should be patent, none of Erin's accounts of what occurred on March 24 and 25, 2012 are completely reconcilable with Richard's testimony respecting these same days. The proper approach to determining such contests of credibility must be one compatible with the presumption of innocence. I first, then, address the appropriate legal framework for conducting and resolving such credibility assessments. I then turn, by way of overview, to the law governing the application and scope of defences of self and one's property. Finally, I apply these controlling principles to an assessment of the evidence led at trial and the ultimate question of whether the Crown has proven its case beyond a reasonable doubt.

(b) The Governing Law

(i) Credibility

[47] An evaluation of the credibility of each of the witnesses is crucial to the disposition of this prosecution. "Credibility" comprehends two distinct aspects or dimensions of credit-worthiness – honesty and reliability. The former, "honesty", is sometimes used interchangeably with "credibility", as in the following helpful passage from R. v. Thomas, 2012 ONSC 6653, where Code J., at para. 13, discusses the difference between these two facets of the assessment:

Reliability generally relates to the testimonial factors of perception, memory, and communication whereas credibility relates to sincerity or honesty. Reliability is particularly a concern in cases where witnesses are very young, where they testify about distant historical events, where their accounts are inconsistent or contradictory, where their accounts are unsupported by any other reliable evidence, where their observations are not recorded contemporaneously, where they have a poor opportunity to observe, or where some other shortcoming relevant to perception, memory, or communication may exist. See, generally: R. v C. (H.) (2009), 2009 ONCA 56, 241 C.C.C. (3d) 45 at para. 41 (Ont. C.A.) ; R. v. Sanichar, 2012 ONCA 117 ; R. v. Norman (1993), 87 C.C.C. (3d) 153 (Ont. C.A.) ; R. v. S. (W.) (1994), 90 C.C.C. (3d) 242 (Ont. C.A.) ; R. v. M. (B.) (1998), 130 C.C.C. (3d) 353 (Ont. C.A.) ; R. v. G. (G.) , (1997), 115 C.C.C. (3d) 1 (Ont. C.A.) ; R. v. McGrath , [2000] O.J. No. 5735 (S.C.J.) .

[48] The determination of cases involving competing testimonial narratives is governed by the guidelines set out by the Supreme Court in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 . As explained in R. v. J.H.S. (2008), 2008 SCC 30, 231 C.C.C. (3d) 302 (S.C.C.) , at para. 9 , W.(D.) "simply unpacks what reasonable doubt means in the context of evaluating conflicting testimonial accounts". (See also, R. v. C.L.Y. (2008), 2008 SCC 2, 227 C.C.C. (3d) 129 (S.C.C.) , at para. 8 .) Even where, as here, a case largely presents as a contest of credibility, the adjudicative focus must remain fixed on the standard of reasonable doubt. (See , for example, R. v. Avetysan , 2000 SCC 56, [2000] 2 S.C.R. 745 , esp. at paras. 20-2; R. v. Minuskin (2004), 181 C.C.C. (3d) 542 (Ont. C.A.) , at 550 ; R. v. Rattray , 2007 ONCA 164 .) Importantly, the W.(D.) formulation applies not only to the resolution of directly conflicting evidence between an accused and a complainant but to "credibility findings … arising out of evidence favourable to the defence in the Crown's case": R. v. B.D . , (2011), 2011 ONCA 51, 266 C.C.C. (3d) 197 (Ont. C.A.) , at para. 114 . (See, also, R. v. Robinson , [2011] O.J. No. 4854 (Sup. Ct.) , at para. 35 .)

[49] Like all triers of fact, I may, with reason, accept none, some or all of the evidence of any witness: R. v. J.H.S . , 2008 SCC 30, [2008] 2 S.C.R. 152 , at para. 10 ; R. v. Francois , [1994] 2 S.C.R. 27 , at para. 14 ; R. v. M.R ., 2010 ONCA 285 , at para. 6 ; R. v. Abdallah , 125 C.C.C. (3d) 482 (Ont. C.A.) , at paras. 4-5 . Where reasonable, I can also accord different weight to different portions of the evidence that I do accept: R. v. Howe , 192 C.C.C. (3d) 480 (Ont. C.A.) , at para. 44 . Further, where, as here, a defendant has testified, his evidence – like that of any witness – cannot be considered isolation. As said in R. v. Humphrey , 2011 ONSC 3024, [2011] O.J. No. 2412 (Sup. Ct.) , at para. 152 , "the first and second stages of the W.(D.) framework for analysis can only be undertaken by weighing the accused's evidence together with the conflicting Crown evidence". ( See, also, R. v. Newton , at para. 5 ; R. v. Hull, at para. 5 ; and R. v. Snider 2006 ONCJ 65, [2006] O.J. 879 (C.J.) , at para. 37 ; R. v. Hoohing , 2007 ONCA 577 , at para. 15 .)

[50] Just as a basis for reasonable doubt may be found in any witness's testimony, so too a finding of guilt may be safely grounded on the evidence of a single witness if, of course, sufficiently credible and persuasive to meet the requisite standard: R. v. A.G. , 2000 SCC 17, [2000] 1 S.C.R. 439 , at 453-454 ; Vetrovec v. The Queen , [1982] 1 S.C.R. 811 , at 819 . Finally, acceptance of a contradictory account may itself be a proper basis for rejecting a defendant's testimony: R. v. D. (J.J.R.) (2006), 215 C.C.C. (3d) 252 (Ont. C.A.) , at para. 53 ; R. v . M. (R.E.) , (2008) 2008 SCC 51, 235 C.C.C. (3d) 290 (S.C.C.) , at para. 66 ; and [R. v. Thomas , supra , at para. 26 .

(ii) Defence of Persons and Property

1. The Retrospectivity Issue

[51] Since time immemorial the common law has recognized the reasonable use of force to defend oneself from the violent conduct of another as a legitimate defence to a charge of assault. The use of reasonable force to remove intruders from one's property is similarly condoned. The parameters of these defences have long been defined, if in a notoriously complex and confusing manner, in ss. 34 to 42 of the Criminal Code. These statutory provisions were materially amended, and arguably simplified, on March 4, 2013 when the Citizen's Arrest and Self-Defence Act, Bill C-26, came into force. The "old" provisions pertaining to defence of persons and property – that is, those provisions that obtained at the time the defendant's offences are alleged to have occurred – were then repealed. A threshold question thus arises: is the appropriate statutory regime to assess the lawfulness of the defendant's conduct that in force at the time he is alleged to have committed the offences with which he is charged or, rather, the "new" regime proclaimed by the time of his trial?

[52] The issue of whether the amended provisions have retrospective or only prospective effect has attracted considerable jurisprudential attention. While not universally endorsed, R. v. Pandurevic (2013), 2013 ONSC 2978, 298 C.C.C. (3d) 504 (S.C.) , generally considered the leading authority in Ontario, holds that the new regime does have retrospective application. As MacDonnell J. explained, at paras. 23 - 25 and 43:

When the provisions of the Citizen's Arrest and Self-defence Act are considered in the context of the circumstances leading up to and surrounding its enactment, it is plain that Parliament's aim was not to alter the essential nature of the defence of self-defence. The intention, rather, was to put an end to a situation that was an embarrassment to the rule of law. Parliament sought to substitute clarity and common sense for the incoherence, confusion and occasional absurdity that virtually every informed observer associated with the former statutory scheme, and to rid the administration of justice of the scandalous spectre of juries making decisions not because of the legal instructions they received but notwithstanding them.

When the purpose of the legislation is characterized in this way, it points firmly toward an intention that upon the coming into force of the amendments, judges and juries would immediately begin to assess claims of self-defence under the amended provisions regardless of whether the allegedly defensive acts occurred before or after March 11, 2013. That is, it points toward a retrospective application of the amendments.

To hold otherwise would put the remedial goals of the legislation on hold, and would leave the evils that the legislation was intended to cure to linger, perhaps for years, continuing to damage the repute of the administration of justice. It would leave the criminal trial courts with two versions of self-defence, one of which has been almost universally labeled as unsatisfactory. Further, it would leave those whose claim to self-defence involved conduct preceding March 11, 2013 but whose trials occurred after that date in the anomalous position of being unable to claim the benefit of amendments designed not to alter the essential nature of their defence but to clarify and to foster more reliable assessments of it.

For the[se] reasons …, I am of the view that to apply the amendments prospectively only would frustrate the remedial aims of the legislation by leaving in place for several more years the significant mischief that Parliament manifestly meant to eradicate. That is a factor that strongly suggests an intention for a retrospective application. Further, the strength of the presumption against retrospectivity is attenuated by the fact that the amendments will overwhelmingly be beneficial to those who claim to have acted in self-defence and that any adverse impact of a retrospective application will be isolated and minimal. A consideration of all of the circumstances, in my view, gives rise to a clear and compelling inference that Parliament meant for the amendments to have immediate application at all trials in which the defence of self-defence was asserted. [Emphasis in original.]

[53] I find this analysis persuasive and, on the basis of the same reasoning, extend the retrospective effect of the amendments to the defence of property as well as persons. There are, however, circumstances where exclusive application of this principle could prove less forgiving than reliance on the old regime: see, by way of example only, the discussions of this point in R. v. Williams , 2013 BCSC 1774, [2013] BC.J. No. 2133 (S.C.) and R. v. Carriere , [2013] A.J. No. 1189 (Q.B.) . In such cases, an exclusively retrospective approach would likely conflict with s. 11(g) of the Charter. It would also conflict with clear dicta from the Supreme Court of Canada in R. v. Dineley , 2012 SCC 58, [2012] 3 S.C.R. 272 , at para. 18 : "the right of an accused to rely on a defence is a substantive right and that new legislation has to be interpreted so as not to deprive the accused of a defence that would have been open to him or her at the time of the impugned act". Accordingly, I adopt the minority view of Paciocco J. in R. v. Parker , 2013 ONCJ 195 , at para. 5 , with respect to the appropriate approach to be taken during this transitional period:

[A]ccused persons should receive the benefit of the law in place at the time of their alleged offence, as well as the benefit of new substantive provisions in effect at the time of their trials that protect their liberty interests . In my view, there is no realistic basis for presuming in such cases that Parliament must have intended to apply those rules only in the future. Instead, Parliament can and should be taken to intend that when a new defence is created, accused persons yet to be tried for previous alleged offences should have access to that defence where it operates more generously for them than the prior law. [Emphasis added.]

Depending on my findings as to the facts that emerge from the evidence, my adoption of this elective approach to pre-amendment charges may make little or no difference in assessing the availability and effect of any claim to a defence of person or property as advanced in the circumstances of the instant case.

2. The Elements of the Defence

[54] While the testimony of the defendant in regard to his use of force speaks only to self-defence (a matter I soon revisit), the defence position is that whatever force he applied was "justified" (in the language of the "old" regime) as he was lawfully acting in defence of both himself and his property. Even if the defendant did not advance these twin defences I, as trier, am required to consider each if they have an "air of reality", the threshold test established by the Supreme Court in R. v. Cinous , 2002 SCC 29, [2002] 2 S.C.R. 3 . (As to the obligation of a trier of fact in this regard, even in, as here, judge-alone trials, see, by way of analogous reasoning, R. v. Davis , [1999] 3 S.C.R. 759 , at para. 77 .)

[55] The provisions governing the genus of self-defence advanced in this case were, at the time of the alleged assaults, those set out in s. 34(1) and, particularly, s. 37 of the Code. They read:

34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

37. (1) Every one is justified in using force to defend himself … from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

The pertinent provision respecting defence of property at the time read:

41. (1) Every one who is in peaceable possession of a dwelling-house or real property … is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.

[56] The relevant portions of the provisions governing the defence of persons (s. 34) and property (s. 35) that are currently in force read as follow:

34. (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them … or that a threat of force is being made against them … ;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves … from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person's role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person's response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

35. (1) A person is not guilty of an offence if

(a) they … believe on reasonable grounds that they are in peaceable possession of property … ;

(b) they believe on reasonable grounds that another person

(i) is about to enter, is entering or has entered the property without being entitled by law to do so,

(c) the act that constitutes the offence is committed for the purpose of

(i) preventing the other person from entering the property, or removing that person from the property,

and

(d) the act committed is reasonable in the circumstances.

[57] Under the current regime, if the Crown disproves beyond reasonable doubt any of the three factual preconditions to the use of force to defend oneself, that defence fails. The same result obtains upon the Crown negativing any of the four factual preconditions to the use of force to protect one's property. The s. 34(2) non-exhaustive inventory of "factors" bearing on an evaluation of the reasonableness of the force applied in circumstances of putative self-defence codifies many if not most of those historically considered in assessing such reasonableness. Some, but clearly not all, of these factors also apply to an appraisal of whether " the act committed is reasonable in the circumstances", the final precondition to a claim under the "new" s. 35 defence of property.

[58] One immediately apparent variation between the "old" and "new" regimes is that necessity is no longer a rigid prerequisite to the successful invocation of either defence. It is, instead, effectively incorporated into the "factors" to be considered in assessing reasonableness and thus subject to some discretion in gauging its impact within the larger factual matrix. Similarly, the application of disproportionate force is no longer a bar to successful invocation of self-defence as it was under the "old" s. 37; rather, "proportionality" is now a factor in determining the reasonableness of the act subject to scrutiny. A third patent distinction is that the language of "justified in using force" has been replaced by the phrase "not guilty of an offence", although the legal significance, if any, of this amendment is unclear as the defences at issue likely remain within the category of "justifications" rather than "excuses".

[59] The "reasonable belief" requirement in the first precondition to animation of both ss. 34 and 35 incorporates both subjective and objective (or, at least, "modified objective") elements: that is, an accused must personally believe in the use or threat of force or unlawful entry and that belief must, in all the circumstances, be reasonable as assessed from the perspective of a reasonable accused cloaked in the relevant attributes (maturity, experience, intelligence and physical health, for example) of the defendant. Some of these considerations (maturity and intelligence, for two) are not listed among the s. 34(2) "factors" bearing on " determining whether the act committed is reasonable in the circumstances". Significantly, the self-defence prerequisite condition to which the "factors" relate, s. 34(1)(c), is concerned with the reasonableness of the impugned act, not the mental state or reasonableness of a defendant's belief. Nonetheless, the use of the introductory phrase "including, but not limited to" makes clear that factors other than those itemized in s. 34(2) and that impact on accused's perception or judgment may well play into an assessment of the reasonableness of the alleged misconduct itself.

[60] The immediately prior comparison of the two regimes is not exhaustive. It is intended, rather, to focus on some of the distinctions that, depending on which regime is applied, may influence the assessment of the defences of person and property advanced at this trial.

(c) Applying the Law

[61] The defendant admits applying force to the complainant Erin. He also admits that the physical trauma she suffered was occasioned by that force. Consent is not realistically at issue or, given the nature of some of the injuries, could it be with respect to the charge of assault causing bodily harm. The defendant's defence, rather, is that he acted in self-defence and defence of his property.

[62] Richard's own testimony presents an immediate challenge to the vitality of at least part of this defence umbrella. While Richard acknowledges applying force to Erin, he says he did so on only one occasion when, he says further, he was acting solely in self-defence. Other than his single effort to restrain Erin by the kitchen counter on Saturday, he denies using physical force in any altercation with Erin at any other time. This posture, resolutely maintained, is not only inconsistent with any and all of Erin's accounts of the weekend's events but, I find, very difficult to reconcile with the entirety of the undisputed photographic images of her bruising – especially that on Erin's knees and, perhaps, her back. These latter traumas are not attributed, directly or inferentially, to the kitchen scuffle by either party's accounts. Accordingly, an evidentiary foundation for Richard acting in defence of his property must be found, if at all, in Erin's testimony (as confirmed, in part, by Richard's evidence that she repeatedly refused his requests to leave his apartment) or, at least conceptually, in such wholesale rejection of her testimony to afford reasonable doubt through the absence of evidence: R. v. Lifchus , [1997] 3 S.C.R. 320 , at paras. 30 , 36 and 39.

[63] There is at least some evidentiary agreement as to the broad contours of the incident at the kitchen counter resulting in Erin injuring her head when she fell. On Richard's account, this occurred when Erin, enraged, physically accosted him after he had told her to leave and while on his way to retrieve her bags. He firmly gripped Erin's upper arms to restrain her and, then, her lower arms and wrists to prevent her from flailing her arms and striking out at him again. They pushed at each other, back and forth, and, when abruptly released, Erin fell backward and lacerated the rear of her head. Erin's testimony does not directly contradict this segment of Richard's narrative; indeed, there are aspects of her evidence (her four preceding blows to Richard's stomach, the absence of any retaliation by Richard, his effort to collect her bags, the mutual pushing and the consequent fall and head injury in the kitchen area) that are confirmatory of his account. I am left with well more than a reasonable doubt that Richard was indeed acting in self-defence during the altercation that resulted in Erin's fall and cranial laceration.

[64] Viewed through the lens of the "old" s. 37, Richard was "justified" in using force to defend himself from Erin's assault. That force, by way of his physical restraint of Erin's arms, was not excessive nor did it amount to more force than necessary to prevent the repetition of the assault. Based on the evidence I do accept, I am also doubtful that the fall and cut to Erin's head was anything more than the unintended and unanticipated consequence of her sudden release from Richard's defensive grip and the backward propulsion that followed.

[65] Considered in light of the current self-defence provision (the "new" s. 34 ), Richard is "not guilty" of this alleged assault because, as I find, he believed on reasonable grounds that Erin had or was attempting to strike him, that he responded for the purpose of defending or protecting himself from her blows, and his use of force, by way solely of physical restraint, was reasonable in the circumstances. In assessing this final variable, I am mindful of and have considered the evaluative factors itemized in s. 34(2) bearing on the relevant circumstances of both parties and the impugned act.

[66] I find, further, that the visible trauma to Erin's head, arms, shoulders and wrists is consistent with the physical intensity of this relatively brief exchange. On at least one of Erin's accounts, it may also afford a basis for one, if not both, of the bruises on her back. And although likely unrelated to the kitchen fall incident, I note that the only evidence referable to the source of the discolouration on Erin's knuckles comes through Erin who assigns this bruising to her repeated striking at Richard with her fists.

[67] While I accept much of Richard's recital of the conduct surrounding the cut to Erin's head, I cannot accept his denials that, apart from the blows to his stomach area, there were no further physical altercations. While Erin's testimony is fraught with difficulties, the theme of repeated physical disputes over the course of both Saturday and Sunday is the one consistent element in her various constructions of the events of those two days, and I am satisfied that she and Richard did engage in an intermittent series of struggles. Richard's denials cannot be reconciled with Erin's evidence in this regard, or with all of the physical evidence adduced through the police photographs. Nor can I accept Richard's assertion that he never saw the bruising on Erin's arms that was immediately apparent to the police.

[68] Most perplexing, however, is the task of assessing the value and weight to be assigned Erin's evidence. It is one thing to say that there must have been further altercations. It is quite another to found guilt on evidence that is so internally inconsistent and otherwise unreliable to defeat any effort to determine the nature and number of the physical exchanges that did occur, the role played by Erin and Richard in each incident, and whether (as sufficiently strongly suggested by Erin to amount to an air of reality) Richard was or was not acting within the compass of justification afforded by the Code's defence of property provisions when he physically responded to Erin's persistent defiance of his demands that she leave his premises. As recognized by the Supreme Court in R. v. Gagnon , 2006 SCC 17, [2006] 1 S.C.R. 621 , at para. 20 :

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of event.

[69] I have grave concerns about both Erin's honesty and the reliability of her accounts. She admitted to lying hundreds of times to her husband. She likely also deceived Richard during the course of their relationship. A number of material aspects of her three versions (as I have earlier labeled them) of the events on Saturday and Sunday simply cannot be reconciled. Although she never sincerely conceded testimonial error or mistake or inconsistency, Erin's various accounts cannot all be factually correct. Despite her affirmation to tell the truth she inevitably and conspicuously failed to do so. Further, the ease with which she amended her testimony to meet conflicting evidence and appease her interrogators or anticipate the thrust of their examinations renders it impossible to distinguish truth from fiction with any confidence. A denial that she sustained any injuries or sought medical attention morphs into a cut to the head that requires emergency treatment. Being repeatedly lifted off the ground and tossed across a room is reframed as reciprocal pushing for which no fault can be assigned. Richard's once inexplicable aggression is transformed into a proportionate response to her provocations, her initiation of violent behaviour and her adamantine refusal to leave Richard's apartment despite knowing that he "desperately" wants her to go. Whether or not inebriated, Erin had consumed more than a bottle of wine on both Saturday and Sunday. Perhaps in a moment of rare candour, she acknowledged that she was "confused" about the sequence and dynamics of the salient events –– "the exact time frame and, you know, how everything occurred", in her words. Her only certainty was "the result" – by which she meant, "what's shown in the photographs" and, even then, only after she was compelled to view them.

[70] I am satisfied that Erin's status changed sometime on Saturday from that of guest to that, in law, of trespasser. (As put by the Nova Scotia Court of Appeal in R. v. Keating (1992), 76 C.C.C. (3d) 570 : "A licensee or invitee may subsequently become a trespasser by exceeding the scope of his invitation or by overstaying his welcome".) Erin's evidence lends some credence – indeed, affords an evidentiary foundation – to the defence position that, apart from the kitchen fall incident, any force applied by Richard was for the purpose, in the language of the "old" s. 41, of "remov[ing] a trespasser" or, as set out in the current s. 35, "removing that person from the property". Whether Richard "use[d] no more force than is necessary" or, under the "new" regime, his use of force was "reasonable in the circumstances" then assumes critical mass in assessing the validity of his defence or, more accurately put, whether I am left with a reasonable doubt as to the integrity of such claim. And here lies the crux of the Crown's dilemma: having, through Erin's testimony, opened the door to a defence of property it must rely on the same evidentiary source to shut that door or, otherwise, forgo a conviction. Evidence that clears the threshold of "air of reality" may not so readily amount to "proof beyond reasonable doubt".

[71] To rehearse the legal imperatives bearing on the burden of proof where a defendant, as here, crests the hurdle of air of reality respecting the defence at issue, the Crown must prove beyond reasonable doubt that at least one of the statutory preconditions to a defence of property is not established. Given the profoundly unreliable nature of Erin's evidence, that burden cannot here be met through reliance on her testimony. Nor, absent credible explanation as to the cause of Erin's various injuries, are the police photographs capable of carrying the necessary incriminatory weight. In the result, I am not persuaded to the appropriate standard that the defence of defence of property does not here obtain.

D. CONCLUSION

[72] For the reasons set out, I am not satisfied that the defendant is guilty of assault or assault causing bodily harm. Accordingly, he is acquitted of both offences with which he remains charged.

[73] As should be clear, my verdict, in the end, is not dependent on which of the two Criminal Code regimes governing the defences of person and property is applied.

Released (as revised) on August 13, 2014

Justice Melvyn Green